Can a judge or magistrate keep an active real estate salesperson license?

Currency note

This opinion was issued in 2006 under the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. The financial-activity and fiduciary provisions discussed here (former Canon 2(C)(3) and Canon 4(D)(1)) have been renumbered and revised in the current Code. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed whether a judge or magistrate may maintain and use an active license as a real estate salesperson. It explained the practical problem: a licensed real estate salesperson must affiliate with a broker to keep an active license and must fulfill fiduciary duties when representing real estate clients. The Board concluded that a full-time judge or full-time magistrate cannot meet those conditions without violating Canon 2(C)(3) and Canon 4(D)(1), so a full-time judge or magistrate may not maintain or use an active real estate salesperson license.

The Board reached a different conclusion for part-time judicial officers. A part-time judge or part-time magistrate is not subject to Canon 2(C)(3) and Canon 4(D)(1), and therefore may maintain and use an active real estate salesperson license, provided the real estate activities do not result in violations of any other provisions of the Code or Ohio Ethics Law. Most significantly, the activities must not exploit the judicial position and must not involve the judge or magistrate in frequent transactions or business relationships with lawyers or others likely to come before the court.

Common questions

Q: Can a full-time judge keep an active real estate sales license on the side?

A: No. The opinion concluded a full-time judge or magistrate may not maintain or use an active real estate salesperson license, because doing so would violate Canon 2(C)(3) and Canon 4(D)(1).

Q: Can a part-time judge or magistrate hold the license?

A: Yes, with conditions. Per the opinion, a part-time judge or magistrate may hold the license if the activities comply with the rest of the Code and Ohio Ethics Law, do not exploit the position, and do not involve frequent dealings with people likely to come before the court.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct Canon 2(C)(3) and Canon 4(D)(1), which limited a full-time judge's financial and business activities and fiduciary roles, and the exemptions applicable to part-time judicial officers, read with Ohio Ethics Law. These provisions are addressed, renumbered and revised, in the current Code.

Citations and references

Rules of Judicial Conduct:

• Former Ohio Code of Judicial Conduct Canon 2(C)(3), Canon 4(D)(1)

See also

• Ohio BPC Op. 1998-012: Extra-Judicial Business Activity by a Full-Time Judge or Magistrate
• Ohio BPC Op. 1991-027: Judge Involvement in a Business Joint Venture
• Ohio BPC Op. 1991-010: Judge as Partner in a For-Profit CLE Business

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-06-001.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us

                                       OFFICE OF SECRETARY


                                 OPINION 2006-1
                              Issued February 10, 2006

[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is
superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]

SYLLABUS: A full-time judge or full-time magistrate may not maintain or use
an active license as a real estate salesperson. A licensed real estate salesperson
must affiliate with a broker to maintain an active license and must fulfill fiduciary
duties when representing real estate clients. A full-time judge or full-time
magistrate cannot fulfill these conditions without violating Canon 2(C)(3) and
Canon 4(D)(1).

A part-time judge or part-time magistrate is not subject to Canon 2(C)(3) and
Canon 4(D)(1) and therefore may maintain and use an active license as a real
estate salesperson, provided the real estate activities do not result in violations of
any other provisions of the Ohio Code of Judicial Conduct or any provisions of
Ohio Ethics Law. Most significantly, the activities must not exploit the judicial
position; must not involve the judge or magistrate in frequent transactions or
business relationships with lawyers or other persons likely to come before the
court; must not interfere with the performance of judicial duties; and must not
take place in the court, occur during court hours, or use court resources or
personnel. Compensation for activities as a licensed real estate salesperson must
be reported pursuant to Canon 2(D)(3)(a) on the annual financial disclosure
statement.

OPINION: This opinion addresses the propriety of judges and magistrates
maintaining active licenses as real estate salespersons.

   Is it proper for a full-time judge or full-time magistrate to maintain
   an active license as a real estate salesperson and to use the license
   in buying or selling real estate for him or herself as investments or
   in providing real estate services to others?

   Is it proper for a part-time judge or part-time magistrate to
   maintain an active license as a real estate salesperson and to use the
   license in buying or selling real estate for him or herself as
   investments or in providing real estate services to others?

Op. 2006-1 2

Real estate salespersons are licensed and regulated by the State

Real estate salespersons are licensed and regulated by the State of Ohio pursuant
to Chapter 4735 of the Ohio Revised Code. No person may act as a real estate
salesperson without being licensed. Ohio Rev. Code Ann. § 4735.02 (West 2004).

By definition, a “ ‘real estate salesperson’ means any person associated with a
licensed real estate broker to do or to deal in any acts or transactions set out or
comprehended by the definition of a real estate broker, for compensation or
otherwise.” Ohio Rev. Code Ann. § 4735.01(C) (West 2004).

The license of a real estate salesperson is held by a licensed broker with whom the
salesperson is or is to be associated. The salesperson’s license remains with the
broker until the salesperson places the license on inactive status or leaves the
brokerage or is terminated. Ohio Rev.Code Ann. § 4735.13(B) (West Supp.
2005). Each license is valid until placed on inactive status, revoked, suspended,
or the license expires by operation of law. Ohio Rev.Code Ann. § 4735.13(A)
(West Supp. 2005).

A licensed real estate salesperson is considered an associate of a real estate
broker, not an independent contractor. See, e.g., Fulton v. Aszman (1982), 4
Ohio App.3d 64, 71, 446 N.E.2d 803, 812. Wolf v. Hyman (1957), 104 Ohio App.
32, 35, 143 N.E 2d 633, 635. A licensed real estate salesperson is the agent of a
licensed real estate broker for whom he works as a matter of law when
commissions are collected in the name of the broker. Bunch v. Tom Althauser
Realty, Inc., (1977) 55 Ohio App. 2d 123, 129, 379 N.E. 2d 613, 617.

A licensed real estate salesperson is a fiduciary and must use his or her best
efforts to further the interests of the client. Ohio Rev. Code Ann. § 4735.62 (West
2004). A licensed real estate salesperson must exercise reasonable skill and care
in representing the client and carrying out the responsibilities of the agency
relationship; must perform terms of the written agency agreement; must follow
lawful instructions of the client; must perform the duties required by law in a
manner loyal to the client; must comply with applicable statutes, rules, and
regulations; must disclose to the client material facts; must advise the client to
obtain expert advice when necessary or appropriate; must account for all moneys
and property received; must keep confidential all confidential information. Ohio
Rev.Code Ann. § 4735.62 (A) – (I) (West 2004).

Judges and Magistrates Are Governed by the Ohio Code of Judicial
Conduct

The applicable Canons of the Ohio Code of Judicial Conduct are Canon 2(C) and
4(D). Canon 2(C) restricts financial and business activities. Canon 4(D) restricts
fiduciary activities.

Op. 2006-1 3

  Canon 2(C) Financial Activities

  (1) A judge shall not engage in either of the following financial and
      business dealings:

         (a) Dealings that reasonably may be perceived to exploit the
             judge's judicial position;

         (b) Dealings that involve the judge in frequent transactions
             or continuing business relationships with lawyers or
             other persons likely to come before the court on which
             the judge serves.

  (2) Subject to the requirements of this Code, a judge may hold and
      manage investments of the judge and members of the judge's
      family, including real estate, and engage in other remunerative
      activity.

  (3) A judge shall not serve as an officer, director, manager, general
      partner, advisor, or employee of any business entity except that
      a judge, subject to the requirements of this Code, may manage
      and participate in either of the following:

         (a) A business closely held by the judge or member of the
             judge's family;

         (b) A business entity primarily engaged in investment of the
             financial resources of the judge or members of the judge's
             family.

  (4) A judge shall manage his or her investments and other financial
      interests to minimize the number of cases in which the judge is
      disqualified. As soon as the judge can do so without serious
      financial detriment, the judge shall divest himself or herself of
      investments and other financial interests that might require
      frequent disqualification.

  Canon 4(D) Fiduciary Positions

  (1) A judge shall not serve as executor, administrator, or other
      personal representative, trustee, guardian, attorney in fact, or
      other fiduciary, except for the estate, trust, or person of a
      member of the judge's family, and then only if the service does
      not interfere with the proper performance of judicial duties.

  (2) A judge shall not serve as a fiduciary if it is likely that the judge
      as a fiduciary will be engaged in proceedings that would

Op. 2006-1 4

      ordinarily come before the judge or if the estate, trust, or ward
      becomes involved in adversary proceedings in the court on
      which the judge serves or one under its appellate jurisdiction.

  (3) The same restrictions on financial activities that apply to a judge
      personally also apply to the judge while acting in a fiduciary
      capacity.

Full-time judges and full time magistrates may not maintain or use an
active license as a real estate salesperson

Full-time judges and full-time magistrates must comply with the Ohio Code of
Judicial Conduct in its entirety. Thus, they are subject to Canon 2(C)(3) and
Canon 4(D)(1). See Section A, Compliance with the Code of Judicial Conduct.

Canon 2(C)(3) prohibits a full-time judge or full-time magistrate from serving as
an officer, director, manager, general partner, advisor, or employee of any
business entity (except for managing and participating in a business closely held
by the judge or member of the judge's family or a business entity primarily
engaged in investment of the financial resources of the judge or members of the
judge's family).

Canon 4(D)(1) prohibits a full-time judge or full-time magistrate from serving as
a fiduciary (except for the estate, trust, or person of a member of the judge's
family).

It is impossible for a full-time judge or full-time magistrate to maintain and use
an active license as a real estate salesperson and also comply with Canon 2(C)(3)
and Canon 4(D)(1). The affiliation as a licensed real estate salesperson with a
licensed real estate broker as required by R.C. 4735.13(B) and the existing agency
relationship between the broker and the salesperson would violate Canon
2(C)(3). The performance of the fiduciary duties of a licensed real estate
salesperson as required in R.C. 4735.62 would violate Canon 4(D)(1).

Advisory committees in other states agree that a magistrate or judge should not
be engaged actively as a real estate salesperson. A magistrate may not initiate an
affiliation with a real estate brokerage agency, nor actively engage in the real
estate business. Delaware, Judicial Ethics Advisory Comm., Op. JEAC 2005-1
(2005). A full-time judge may not apply for a real estate broker’s or sales license.
New York, Advisory Comm. on Judicial Ethics, Op. 95-100 (1995). A judge may
not maintain an active real estate license, but may place the license in an inactive
status. Florida, Comm. on Standards of Conduct Governing Judges, Op. 90/11
(1990). It would violate the Canons of Judicial Ethics for a judge, who is a
properly licensed real estate salesman, to engage for remuneration in the sale of
real estate for a licensed real estate broker. Alabama, Judicial Inquiry Comm’n,
Op. 78-34 (1978). It would be impossible for a judge to sell real estate for a

Op. 2006-1 5

licensed broker without violating Canon 5(C). Alabama, Judicial Inquiry
Comm’n, Op. 78-40 (1978).

In conclusion, the Board advises that a full-time judge or full-time magistrate
may not maintain or use an active license as a real estate salesperson. A licensed
real estate salesperson must affiliate with a broker to maintain an active license
and must fulfill fiduciary duties when representing real estate clients. A full-time
judge or full-time magistrate cannot fulfill these conditions without violating
Canon 2(C)(3) and Canon 4(D)(1).

Part-time judges and magistrates may maintain and use an active license
as a real estate salesperson

Part-time judges and part-time magistrates are subject to less restriction than
their full-time counterparts. Part-time judges and part-time magistrates are “not
required to comply with Canon 2(C)(3) [business]; Canon 4(C)(2) [governmental
appointments], (D) [fiduciary], (E) [arbitration, mediation], (F) [practice of law],
and Canon 2(D)(3) [quasi-judicial and extra-judicial activity reporting], except
that a part-time judge must file the annual disclosure statement required by
section 102.02 of the Revised Code.” Section (B)(1) Compliance with the Code of
Judicial Conduct.

Because part-time judges and part-time magistrates are not subject to Canon
2(C)(3) and Canon 4(D)(1), they may maintain and use an active license as a real
estate salesperson, provided their activities as a licensed real estate salesperson
do not result in violations of any other provisions of the Ohio Code of Judicial
Conduct or any provision of Ohio Ethics Law.

Canon 2(C)(1)(a) of the Ohio Code of Judicial Conduct restricts a judge or
magistrate from financial and business dealings that may be perceived to exploit
the judicial position. Canon 2(C)(1)(b) prohibits financial and business dealings
that involve a judge or magistrate in frequent transactions or continuing business
relationships with lawyers or other persons likely to come before the court.
Canon 2(C)(4) requires that a judge manage investments and financial interests
to minimize the number of cases in which he or she is disqualified. Canon 3(A)
requires that judicial duties take precedence over all the judge’s other activities.
Canon 3(B)(8) requires that a judge dispose of all judicial matters promptly,
efficiently, fairly, and in compliance with the Rules of Superintendence.

In Opinion 98-12 the Board advised that participation of judges and magistrates
in permitted business activities must not (1) exploit the judicial office through
misuse of the position or through time consuming activities that detract from
judicial duties; (2) involve frequent transactions or continuing business
relationships with lawyers or other persons likely to come before the court on
which the judge or magistrate serves; or (3) involve business interests that would

Op. 2006-1 6

require frequent disqualification of the judge or magistrate. Ohio SupCt, Bd
Comm’rs on Grievances & Discipline, Op. 98-12 (1998).

Under Canon 2(C)(1)(a), Canon 2(C)(1)(b), Canon 2(C)(4), Canon 3(A), and
Canon 3(B)(8), if a part-time magistrate or part-time judge performs services as a
licensed real estate salesperson, the activities must not exploit the judicial
position, must not involve the judge or magistrate in frequent transactions or
business relationships with lawyers or other persons likely to come before the
court; must not interfere with the performance of judicial duties, and must not
take place in the court, occur during court hours, or use court resources or
personnel.

If a part-time judge or part-time magistrate advertises the real estate activities,
he or she must not use the judicial title or mention the judicial office in the real
estate advertising.

Divisions (D) and (E) of Section 102.03 of the Ohio Revised Code are the
pertinent provisions of Ohio Ethics Law.

   102.03(D) No public official or employee shall use or authorize the
   use of the authority or influence of office or employment to secure
   anything of value or the promise or offer of anything of value that is
   of such a character as to manifest a substantial and improper
   influence upon the public official or employee with respect to that
   person’s duties.

   103.03(E) No public official or employee shall solicit or accept
   anything of value that is of such a character as to manifest a
   substantial and improper influence upon the public official or
   employee with respect to that person’s duties.

Ohio Rev. Code Ann. §102.03(D), (E) (West Supp. 2005).

Under Divisions (D) and (E) of Section 102.03 of the Ohio Revised Code a part-
time judge or part-time magistrate may not engage in activities as a licensed real
estate salesperson for parties that are interested in matters before, regulated by,
or doing or seeking to do business with the court, unless the judge or magistrate
is able to disqualify from their cases and withdraw from any matters involving
their interests. Further under Division (D) of Section 102.03, a part-time judge
or part-time magistrate who engages in activities as a real estate salesperson
should not use public time, facilities, personnel, or resources in conducting his or
her real estate activities, use the judicial title in connection with the real estate
activities, use his or her relationship with other officials and employees to secure
a favorable decision or action regarding his or her real estate activities; discuss,
deliberate, vote on, or preside over any matter involving his or her real estate
activities, participate in decisions regarding his or her competitors, or use the

Op. 2006-1 7

judicial office or authority of the office in any other way to secure a benefit to his
or her activities as a real estate salesperson.

In conclusion, the Board advises that a part-time judge or part-time magistrate is
not subject to Canon 2(C)(3) and Canon 4(D)(1) and therefore may maintain and
use an active license as a real estate salesperson, provided the real estate
activities do not result in violations of any other provisions of the Ohio Code of
Judicial Conduct or Ohio Ethics Law. Most significantly, the activities must not
exploit the judicial position; must not involve the judge or magistrate in frequent
transactions or business relationships with lawyers or other persons likely to
come before the court; must not interfere with the performance of judicial duties;
and must not take place in the court, occur during court hours, or use court
resources or personnel. Compensation for activities as a licensed real estate
salesperson must be reported pursuant to Canon 2(D)(3)(a) on the annual
financial disclosure statement.

Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to
prospective or hypothetical questions regarding the application of the
Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code
of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office. Pursuant to Section 102.08 of the Ohio
Revised Code, the requester of the opinion may reasonably rely on the
opinion as it applies to Ohio Ethics Law and related statutes.